Gwinner v. Lehigh & Delaware Gap Railroad

The opinion of the court was delivered, May 14th 1867, by Agnew, J. — The question in this case is whether the Act of 9th April 1856, Pamph. L. 288, repeals the Act of 27th April 1855, Pamph. L. 365, as to the time when an appeal shall be taken from the award of viewers of damages: Purd. 1861, 839-40, pl. 14, 16. Under the Act of 1855 the appeal must be taken within thirty days after the confirmation of such report. The Act of 1856 enacts, “ and upon the report of said viewers or any four of them being filed in said court, either party, within thirty days thereafter, may file.his or their appeal, from said report to the said court.” Clearly the filing of the report in court is a different thing from the confirmation of the report after it is filed. Acts which grant a right conditioned on different things are clearly inconsistent. It is this inconsistency which operates as a repeal. That the statutes are in pari materia as to the appeal makes no difference; for the appeal, the same thing to which they relate, is conditioned upon a different fact. That the legislature meant to change the terms of the appeal .from the [128] confirmation by the court, to the filing of the report in the court, is obvious from the last clause in the Act of 1856, not noticed in the argument of the plaintiff in error. “ If any exceptions be filed with any appeal to the proceedings they shall be specially disposed of; and if disallowed the appeal shall proceed as provided.” Here the exceptions which must be disposed of before a confirmation can take place are to proceed pari passu with the appeal until disposed of, and if disallowed, the appeal goes on. The appeal, therefore, as well as the exceptions, must be before confirmation. The analogies of practice also discover, the intent of the legislature to proceed in such cases by a filing of the report, appeal or exceptions, judgment and execution or writ of error. The power of the court to order what notices shall be given connected with any part of the proceedings was obviously intended to regulate the practice. It would be highly improper to limit an appeal to a certain number of days after a filing of an award in vacation without notice of the time. A report made up even just before the term might not be filed at that term. Without notice, therefore, an appeal might be lost by being out of time. In this case the time of filing exceptions w'as extended by the court for more than thirty days, so that it is manifest the party had notice. Judgment affirmed with costs.